Center for Inquiry Concerned With New Accommodations on Birth Control Rule

February 1, 2013

The Department
of Health and Human Services (HHS) today issued a notice of proposed
rulemaking regarding the birth control rule of the Affordable Care Act in an effort to further
accommodate religious groups that object to the policy, which requires health
insurance plans to cover preventative care, such as contraception,
at no charge.

The notice addresses two main issues: it alters what
HHS considers as an exempt "religious employer," and clarifies how employees of organizations that are exempt from the rule will receive coverage. It also discusses issues how HHS might handle objecting non-religious employers.

HHS Secretary
Kathleen Sebelius claims the changes provide "women across the nation
with coverage of recommended preventive care at no cost, while respecting
religious concerns."

However, while we
are still examining the detailed outline of today's proposals,
the Center for Inquiry (CFI) is concerned that the changes
unreasonably expand the
definition of "religious employer," and could make it more complicated for employees to access contraception. We are also disappointed that HHS has once again bent over backwards to please the religious lobby.

As you might
recall, HHS originally announced the birth control rule on August 1, 2011, with only houses of worship being exempt. The rule faced
immediate and fierce opposition from religious groups seeking to either
eliminate the guideline or else widely expand the exemption clause to include
religiously affiliated organizations, such as hospitals, charities, and
universities. Still, the rule was confirmed on Jan. 20, 2012.

Then, on February 15, 2012, HHS attempted to accommodate continuing religious objections by announcing that it would allow religiously affiliated organizations
not to offer contraceptive coverage directly, and instead require insurers to
provide coverage.

CFI rejected this accommodation on the grounds
that it was unwise and unwarranted. Several months later, on June 11, 2012, we filed a formal letter with HHS urging the
agency to finalize the mandate as is, arguing it was justified on both scientific and
constitutional grounds.

Today's
announcement signals that, HHS agreed with CFI on certain points, and disagreed on others. For example, CFI has argued -- and HHS had previously accepted -- that non-profit organizations should only be exempt if they meet the following qualifications:

exist mainly
to promote religious values;

employ
persons who share its religious values;

and serve a
specifically religious population.

(Note: for-profit companies, such as Hobby Lobby, remain ineligible).

In comparison,
we argued that religiously affiliated hospitals, charities, and universities
should not be exempt because they:

exist mainly
to provide secular services;

hire persons
of all backgrounds;

serve the
general public;

almost
always receive some form of funding from the government.

HHS has rejected these definitions and now posits that non-profit groups should be able to qualify for exemption
so long as they meet the following qualifications:

As you can see, this is radically different than the previous standard. HHS claims, and some news outlets are reporting, that this will
not provide any broader an exemption than was previously outlined, and that it was simply designed to protect, for instance, churches which operate soup kitchens for the general public.

Yet CFI is
concerned that this is too broad and open a definition of "religious employer." Consider just a few questions: How will HHS determine what does and does not count as a "religious objection"? What does it mean for an outfit to "hold
itself out as a religious organization"? For example, will a humanitarian
organization with a devoutly religious board of directors that claims it
directs the organization based on Biblical principles qualify for exemption?
Or are there other qualities included in "holds itself out as
a religious organization"? By what standards will HHS determine all of these questions?

We are also concerned by the possibility that non-profit employers which are not "religious" could still receive exemption. According to Howard Friedman of Religion Clause, today's announcement also "fleshes out accommodations for non-profit religious organizations that do not meet the definition of 'religious employer,' but oppose providing coverage for some or all contraceptive services."

They may self-certify their objection to their health insurance issuer or third-party administrator. The health insurer will issue the organization's employees (or students if the religious organization is a college or university) an individual market contraceptive coverage policy at no cost. The insurer can afford to do this because the policies cover the same set of individuals they are already insuring, and they will experience lower costs from improvements in women’s health and fewer childbirths.

All of that being said, it seems that HHS did take to heart CFI's recommendation that, despite the
unnecessary accommodation, all exempt groups should at least be responsible for
notifying insurance companies that they will have to set up coverage for
employees:

With respect to insured plans, including
student health plans, these religious organizations would provide notice to
their insurer. The insurer would then notify enrollees that it is
providing them with no-cost contraceptive coverage through separate individual
health insurance policies.

With respect to self-insured plans, as
well as student health plans, these religious organizations would provide
notice to their third party administrator. In turn, the third party
administrator would work with an insurer to arrange no-cost contraceptive
coverage through separate individual health insurance policies.

Insurers and third party administrators
would work to ensure a seamless enrollment process. The proposed rules lay out
how the costs of both the insurer and the third party administrator would be
covered, without any charge to either the religious organization or the
enrollees.

Broadly speaking, we are glad the administration appears to be holding steady on its commitment to provide women with free access to safe, preventative health care, and full control over their reproductive systems. But there was no need to change and make more complex what was already a sound policy. The new definition of "religious employer," along with the other exemption guidelines announced today, could feasibly allow for more exemptions, which would needlessly complicate the process by which women arrange for and receive free contraceptive coverage.

It is also troubling that HHS has given so much influence to the religious
lobby on a major health and public policy
decision. This drawn out debate over something as basic as birth control is a
perfect example of the harmful influence of religious belief on public
policy.

Moreover, while today's proposals should satisfy critics of the rule, it is
unlikely they will. The U.S.
Conference of Catholic Bishops, one of the most prominent opponents of this rule, has not yet issued a statement, but it's hard to believe they will welcome the news with open arms. And both the Family
Research Council and The Becket Fund for Religious Liberty, the Christian advocacy group leading legal challenges to the rule, have already condemned the proposals.

Fortunately, HHS will accept
public comments on today's proposals until April 8, 2013. CFI will spend the
next several weeks analyzing what has been
suggested and formulate a detailed response. We let you know when it is ready.

Until then, we welcome input below or at opp [at] centerforinquiry [dot] net.

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Michael De Dora is director of CFI's Office of Public Policy and the organization's representative to the U.N. Michael has an M.A. in political theory from Brooklyn College, and a B.A. in Rhetoric and Communication from the University at Albany. He also blogs at: www.themoralperspective.com